THEATTORNEY GENERAL 

PRICE DANIEL 

February 

Hon. Elton Gllliland 

County Attorney 

Howard County 

Big Spring, Texas 

Dear Sir: 

o@nlon No. V-771. 

Re: Election of constable 

not a nominee, who recelved one vote in 

general election. 

We refer to your inquiry concerning the eleation of Mr. Jack Hatch as constable of Preoinct No, 4 

in Hcmard County. Your letter reads in part as follows : 

“In the 1940 PAmary Election there 

was no nominee ror Constable of the newly 

rormed Justice Precinct #4, and in the 

General Election no space Zor a candidate 

for such office was provided. In the 

General Eleotion a Mr. Jack Hatch, a resident of Preoinat #4, and a qualified voter went to his voting box and inf’ormed the 

Eleotion Judge of suoh voting box that he, 

Jaok Hatoh,’ desired to vote for himself, 

by write-in, as Constable of Preolnot #4, 

and requested direotiona as to how such 

vote could be cast. The Eleotion Judge 

telephoned the County Clerk and asked him 

whether such a vote would be oounted and 

what was the preoinct number; the County 

Clerk answered that such vote would be 

counted, and that the preolnct was number 

three. Upon the basis or the inforrmtion 

furnished, Mr. Hatch voted for himself for 

Constable of Precinct #3. No other person 

reoeived a vote for Constable in Justice 

Precinct #3, and no votes were cast for a 

Constable in Justice Precinct #4. 

*Is Jack Hatch a duly elected Constable of Justice Precinct #4 in Howard County, Texas?” 
Hon. Elton Gllliland - Page 2 (Y-771) 

where Hatch was a qualirled voter In fortioa 

Preoinot Ro. 4 of Hmard Oounty and mat hir ballot 

ior a qualified person Sor Constablo In that prsoinot, 

which could only elect one Constable, the iaot that the 

ballot was marked ~reolnot No. 3” In which Eatoh was 

not a qualified voter and did not vote, oreated smbiguity on the faoe o? the ballot which should be oonstrued aooording to the Intention OS tha voter. 

The rule a 

lots is stated in Vo 

pliaable 

! 

to improperly market bal- 

. 16 Tex. Jur. page 116, 800. 97 

as follows: 

“IS a ballot had been inadvertently 

or improperly marked, evidence explaining 

the intention of the voter is admissible, 

and if such ballot, either upon its Saoe 

or when construed in connection with the 

attending circumstances, indioates, with 

reasonable certainty, how the elector intended to vote, effect should be given to 

such intention.v 

State Ex rel. Easterday v. Howe, 44 N.W. 874, 

is a case in which some of the.ballots were marked RJ~~- 

tice of the Peace, District ln, and some were marked 

*Justice of the Peace, District 3.” The Court said: 

while these ballots designated the 

wrong districts, yet, being cast in the 

third dlstriot, Where relator was a oandidate for justice of the peace, they certainly show that the voters intended to 

vote for the relator for justice of the 

peace OS the dlstrlot In which they were 

cast. The words ‘Slrst dlstrlot* did not, 

as we think, constitute a part a? the legal designation OS the oSSioe. They 

should be treated as SurplUSage, and these 

ballots should be counted for the relator.” 

In Bradford v. McCloskey, 244 S. W. 575, the 

Court had a case in which some of the ballots for public weigher were marked ‘Public Weigher, Justice Precinct 1” and others were marked “Public Weigher, Precinct l*. The Court said that there was but one office 

of public weigher in precinct No. 1, by reason of which 

either designation was sufficient. The Court said: 
Bon. Elton Cilllland - Page 3 (V-771) 

There Is but one ofiioe a? publlo 

weigher to whioh a candidate may be elected in justice precinct No. 1 in Bexar 

County, just as there is but one office 

of constable in the same precinct, and we 

can perceive 0s no more reason for using 

the word ‘justice* in describing one than 

the other ,v 

In State ex rel. Vogler v. Mahncke, 41 S. W. 

18.5, the Court said on the point: 

n 

. The law seems to be that a ballot zn&‘bc interpreted by the ordinary 

rules which apply to written instruments. 

Ii’, upon the face of the ballot, the intetion of the voter is clear, extrinsic evidence should not be admitted, least of all 

his win evidence as to what his intention 

was. But if, from the face of the ballot, 

the intention be doubtful, then evidence 

of the circumstances under which it was made 

out, if calculated to throw light upon the 

intention, she-ld 3e admitted. . . . 

“An inspection of tl-.e original ballots 

sent up with the record shows that there was 

an evident intention on-the part of the voters to vote for Mahncke, but for what office 

is left in doubt. In this case the pleadings 

of appellant allege that an election was held 

in the city of San Antonio, for city officers 

and ward aldermen (among the latter, one in 

Fifth ward); that at said election there were 

Sour candidates for alderman of the Fifth 

ward, among the number being Ludwig Hahncke 

and H. J. Volger ; and that, at the polling 

p,laoe in precinct No. 11 in said ward, 40 

votes were counted for Mahncke that were illegal, because the office was not designated. 

The ballots have the official stamp on them. 

and we must conclude, under the la6, that ail 

the candidates for city or ward officers at 

the city election have their names on the official ballot. An inspection of the ballots, 

as vlell as the allegations in the pleadings, 

clearly inaicates that Uahncke was running 

for but one office, that of alderman of the 

Fifth ward, and that all the ballots cast for 

him were in that ward. The votes having been 
Hon. Elton Gllllland - Page 4 (V-771) 

cast for Mahncke, in his.own ward, and he being a candidate for only one ofiioe, we are 

led to the conclusion that the district judge 

did not err in counting them for Mahncke for 

alderman of the FiSth ward. . . .” 

Opinion No. O-203 by a former Attorney Gensral held that a parson was elected to the offioe OS oonstable who received one vote, no vote having been cast 

for any other person for the ofiice. 

In view OS the Sor8gOing we are Of the opinion 

that Mr. Hatch was eleoted to the office of constable of 

Precinct No. 4 of Howard County, 

Where a candiaate for constable of Precinct MO. 4 of Howard County, In which he resided, was not the nominee of any political 

party, but intended to vote for himself for 

the office; was erroneously infOrmed by the 

election juc&e that the precinct was Ro. 3, 

an8 he erroneously wrote No. 3 on his ballot 

instead of No. 4, and where his was the only 

ballot cast for constable in Precinct No. 4, 

he was duly elected to the office of constable of Precinct No. 4. 

Yours very truly, 

A!l?roRNEY- OF TEXAS 

WTW:wb